The Armyâ€™s Court of Inquiry (CoI) on Thursday night declared the matter of the death of five Kashmiri civilians, allegedly killed in a fake encounter by Rashtriya Rifles in March 2000, as â€œclosedâ€.

The CBI had earlier established charges of abduction and murder against five Army officials and filed the chargesheet in a designated court in Srinagar in 2006, seeking trial for â€œexemplary punishmentâ€ of the accused.

CBI held five officials of Rashtriya Rifles 7th Battalion guilty of â€œcold-blooded murderâ€ of five innocent civilians of Anantnag.

It had filed the chargesheet against Brigadier Ajay Saxena, Lt Col Brajendra Pratap Singh, Major Sourabh Sharma, Major Amit Saxena and Subedar Idrees Khan for staging the fake encounter and labelling the five abducted civilians as foreign terrorists involved in the massacre of 35 members of the Sikh community at Chittisinghpora on March 20, 2000.

However, after years of legal battle, in which the CBI pressed for the trial and the Army claimed immunity under the Armed Forces (Special Powers) Act, claiming that the prosecution could not proceed in absence of sanction from the Centre. The Supreme Court in 2012 granted the Army the option of conducting the proceedings either through a civil court or its own Court of Inquiry. The Army opted for the latter.

The Armyâ€™s CoI recorded the statements of the witnesses in Kashmir as none of the civilian witnesses agreed to travel to Nagrota, the headquarters of 16 Corps in Jammu, for this purpose. In a statement late on Thursday night, the Army declared the matter as closed â€œbecause the evidence recorded could not establish a prime facie case against any of the accused.â€

â€œThe evidence recorded could not establish a prime facie case against any of the accused persons but clearly established that it was a joint operation by the police and the Army, based on specific intelligence. The case has since been closed by the Army authorities and intimation given to Court of Judicial Magistrate, Srinagar,â€ an Army spokesman said. He said â€œa comprehensive and exhaustive effort was undertaken to record evidence against all the accused persons after it took up the case on apex court directions.â€

â€œOver 50 witnesses have been examined, including a large number of civilian witnesses, state government and police officials. Forensic, documentary and other relevant evidence has also been taken on record,â€ he said. â€œFor the convenience of the next of kin of the deceased persons and other civilian witnesses, the team recording the evidence moved to Kashmir Valley to record their statements. Considerable help was provided by the local civil administrationâ€.

Justice S R Pandian Commission indicted police and CRPF for murder, and said 'direct root causes' of protests were linked to Pathribal killings.

A brief sequence of events that took place in the 13 years and 10 months since the night of March 24-25, 2000, when five villagers were killed in Pathribal, and dubbed as â€œforeign militantsâ€ responsible for the massacre of 36 Sikhs in Chittisinghpora five days earlier.

2000 March 25: On a visit to Chittisinghpora, then home minister L K Advani was told by local police and Army officers that the five LeT mercenaries responsible for the massacre had been eliminated in a â€œsurgical operationâ€ by the police and 7 Rashtriya Rifles the previous night. Col Ajay Saxena and DSP Tajinder Singh explained the â€œoperationâ€ using a detailed map. Area residents, however, said five men had gone missing from nearby villages of Brariangan, Halan and Anantnag, and alleged they were killed in a fake encounter.

April 3: Police fired at protesters marching towards the deputy commissionerâ€™s office. Nine were killed, 35 injured; among them relatives of the missing men. Under pressure, the Farooq Abdullah government subsequently suspended Anantnag SSP Farooq Khan and an SHO, and ordered that the bodies of the five men be exhumed and DNA tested to ascertain their identities.

April 6: A forensic team from the Government Medical College, Srinagar, led by Dr Balbir Kaur exhumed the bodies and sent the samples to the Centre for DNA Fingerprinting and Diagnostics in Hyderabad and Central Forensic Science Laboratory, Kolkata.

October 27: Justice S R Pandian Commission â€” set up to inquire into the Barakpora firing in which nine protesters were killed â€” indicted police and CRPF for murder, and said the â€œdirect root causesâ€ of the protests were linked to the Pathribal killings. Around the same time, the Anantnag police exonerated Wagay alias Chatti Guru, a milkman from Chittisinghpora, whom the then union home secretary Kamal Pande had described as the main link between the Chittisinghpora massacre and the Pathribal encounter.

2001 February 26: The Hyderabad lab wrote to the police, saying that samples supposed to be of a female relative of one of the victims were actually from a male, and another sample supposed to be from a female relative was in fact the blood of two men. The contents of the report were concealed for a year.

April 9: DC, Anantnag, quoting a report by the policeâ€™s Special Investigation Team, admitted that the five men were innocent and ordered Rs 1 lakh ex gratia for each.

2002 March 8: Then CM Farooq Abdullah told the state assembly that officials had tampered with the DNA samples. March 14: NHRC issued notice to the J&K government on the alleged tampering, and sought an â€œup to date report of the action taken in this matterâ€. The next day, Farooq ordered an inquiry headed by retired high court judge G A Kuchai. Dr Balbir Kaur and five others were suspended.

July 16: The state government made the CFSL, Kolkata, report public. Its conclusion: â€œIt has been established that the deceased were not foreign terrorists as claimed by the forces who led the operations, but they were innocent civilians.â€ December 12: Kuchai Commission indicted the forensic team and police for fudging samples. The government suspended police officers, but subsequently reinstated them.

2006 CBI filed a chargesheet in the CJMâ€™s court in Srinagar. Before trial could begin, the Army objected, arguing that prior sanction was needed to prosecute Army officials. The magistrate turned it down. The Army appealed in the additional sessions court and high court, and lost every time. It then moved a Special Leave Petition in the Supreme Court, challenging the high court decision.
2012 May 1: Apex court gave Army discretion to choose between a court martial and criminal trial. June 29: The Army chose court martial.

Don't you realize? Singh is making the foundation to make it look like that Prashant Bhushan's "Referendum in Kashmir" call is absolutely crucial and necessary, and Prashant Bhushan is a messiah of the "aam admi" of Kashmir.

Virtually holding the Jammu and Kashmir Police responsible for misleading the security forces in the infamous Pathribal encounter case, the Armyâ€™s Court of Inquiry has told the Chief Judicial Magistrate of Srinagar that no criminal culpability was established against five officials indicted by the Central Bureau of Investigation.

â€œâ€¦ it is clearly established that a joint operation was launched by the Army [7 Rashtriya Rifles] along with Civil police on March 25, 2000, based on precise information given by the police to the local Army commander, on 24 March 2000. There is no evidence on record which in any way connects any of the five accused persons with the murder, wrongful confinement, abduction/causing disappearance etc of the five deceased persons,â€ General Officer Commanding 16 Corps, Lt. General D.S. Hooda, who headed the CoI, reported to the civil judge.

â€œThe evidence on record does not in any way establish a prima facie case against any of the aforesaid accused persons on any of the charges which were taken over from the honourable CJM Srinagar for which summary of evidence was recorded against themâ€, Gen. Hooda has said. â€œAnd therefore, I, as the commanding officer of all the five accused persons, in conformity with the due process of law, have dismissed the charges against the aforementioned accused persons, in accordance with Army rule 24 (1) (c).â€

While none of the Jammu and Kashmir Police officials agreed to respond to Gen. Hoodaâ€™s observations, a retired official, who held a senior position in the police in South Kashmir in March 2000, told The Hindu: â€œThis case has been meticulously investigated by the countryâ€™s most professional and credible agency. Whatâ€™s the new evidence that the CBI failed to get and the General sahab has got while sitting in his drawing room in Jammu that has proved the Army officials innocent?â€

The retired police officer claimed that FIR 15/2000, registered with the Achhabal police station, was filed on the basis of the written report of the adjutant of Rashtriya Rifles 7th battalion Captain Amit Saxena (now Lt. Colonel), who was the first person to inform the police about the operation, on March 25. â€œHad it been a joint operation, why would the police have required the Armyâ€™s report for registration of FIR?â€

This is not a column about a solution to the intractable problem of Kashmir. It is not about the oppressed Muslim majority, most of which has no love lost for India, or about the terrorised Hindu minority, most of which either fled or was forced out. This is about right and wrong, about a nation that has lost its moral compass and does not now hesitate to substitute democracy with deceit and hypocrisy â€” as the Indian Armyâ€™s unwillingness to take responsibility for killing five villagers near the village of Pathribal 14 years ago reveals.
In the matter of killing innocents, there is no place in violence-prone India more tragic than Kashmir. The official death toll in nearly a quarter century of unrest and insurgency is about 50,000, half the unofficial figure. Even if, as officials say, about 20,000 were slain militants, that leaves thousands missing or dead â€” innocents sacrificed in either keeping Kashmir with India (or trying to extricate it).

Isnâ€™t it time some of the guilty were sacrificed instead?

Save for stray newspaper editorials, outrage against the armyâ€™s shielding of its own has been markedly muted outside Kashmir. This is not surprising. Anything related to the killing of innocents in Kashmir becomes part of a conspiracy of silence that allows soldiers and other security officials to commit excesses and get away with it.

To many Indians, innocents who die are collateral damage. The popular Indian contention: the Kashmiris create trouble, so too bad if innocents are sacrificed. The security forces, the argument continues, are patriots doing a difficult job in a place they are hated, and so they need special protection, such as the Armed Forces Special Powers Act (Afspa), a law in force only in Kashmir and Manipur. The Afspa allows legal immunity for soldiers in â€œdisturbed areasâ€. Even if accused of murder and rape, they can be prosecuted only if Delhi permits.

Pathribal is a fit case for such prosecution because the army consistently obstructed justice, first lying about the killings, claiming five terrorists had been shot dead. When the bodies â€” some shoddily burned, obviously in an attempt to conceal their identities â€” were later exhumed after local protests and, despite attempts to fudge evidence, found to be of five missing villagers, the army still did nothing. When a Central Bureau of Investigation (CBI) probe in 2006 described the killings as â€œcold-blooded murderâ€ and held five soldiers (a major general, two colonels, a Lieutenant colonel and a non-commissioned officer) responsible, the army, instead of at least investigating the case, moved the Supreme Court, arguing that the CBI had no jurisdiction. Legally, the army was right. The SC told the army to either submit to a public trial or set up a military court.

Now, the army simply says there is â€œno evidenceâ€ to indict its soldiers. We could, perhaps, accept this argument if the army told us how it came to this conclusion. It does not. The army declaration to Srinagarâ€™s chief judicial magistrate exonerating its soldiers is â€” including honorifics, reference to context and signature â€” just 382 words long. It tells us that 55 prosecution witnesses were examined, including local police, CBI officers and families of the murdered men, but it does not tell us what they said and on what basis this extensive testimony was rejected.

This cannot be how justice is delivered in a country that boasts of equality and democracy.

Can you imagine the outcry if the Delhi Police had picked up five villagers from rural Delhi, shot them execution-style and burned and buried their bodies â€” and then been caught out? The country would be in ferment, the mass media would be at their high-decibel and investigative best, and the full force of the law â€” and then some â€” would be brought to bear on those guilty of such an outrage. No official authority would dare protect them.

There are other Pathribals in Kashmir, killings where security forces were implicated but blatantly protected from prosecution. It is nobodyâ€™s case that army and paramilitary soldiers have it easy in a land where they are the subject of hate and hostility, their lives sometimes given in defence of the idea of India. But their morale will not â€” and must not â€” be maintained by allowing them to commit the kind of atrocities committed by the terrorists they hunt.

What is unacceptable in mainland India should not be acceptable in Kashmir. The reason why those of the Kashmir Valley grow ever cynical about India, their ambivalence over the years turning to antipathy and hate, is because, let alone expecting justice, they no longer even expect the process of justice. â€œFrom day one, we knew it was a fixed match,â€ Abdul Rashid Khan, whose father was one of the five dead, told The Hindu two days ago.

Too much of this behaviour has been condoned over the years by arguing the army operates under stress and constraint. The result has been the creation of an ever-widening cycle of atrocity, retribution and hate. The cycle is so well-established now that the funeral procession of every militant is greeted with freedom slogans and a rage that only undermines India's hold on Kashmir. Delhi forgets that, for all their doubts about being Indian, Kashmiris helped the army repel invaders in 1947 and 1965. Fixed matches ensure slim chances of a repeat.

The cycle of hate, however entrenched, can fray over time if justice â€” or even a glimmer of it â€” is proffered. The army provided such a glimmer last month when it announced that, notwithstanding Afspa, six soldiers accused of killing three unemployed men in 2010 and passing them off as Pakistani terrorists, would be court-martialed. After the Pathribal decision, that court-martial, whatever its outcome, is likely to be viewed with understandable cynicism. In today's Kashmir, a straw in the wind will never be misunderstood as the wind itself.

Samar Halarnkar is a Bangalore-based journalist. The views expressed by the author are personal.

Since no govt. in future could ever muster the necessary political will to abrogate the provisions of Article.370, lets start by gradually (piecemeal) diluting its de facto provisions on the ground, not on paper (i.e. no tampering with our stated constitution).

Allow Indians from all states to purchase property & settle down in the state in name of development with projects aiming at : increasing tourism, generating jobs, creating infrastructure, increasing cash flow for local govt, connecting remote hamlets & making Kashmir self-sufficient in electricity generation, irrigation, agriculture + animal husbandry, horticulture, floriculture on & so forth....something on the lines of Holland, Belgium & Switzerland model

So far, Kashmiris had to move out to make it big due to absence of enough gainful employment avenues in state & security situation. Now, lets reverse it. Lets bring a vibrant & progressing India at Kashmiri's doorsteps & let them have a stake in the Indian story. We need Kashmiris to witness & believe that they are not beggars & slaves but are capable of skyrocketing growth in their own state.

Gradual Indianisation of Kashmir is the whole idea.

Once they have a dedicated stake in stability & prosperity of their state, their support for anti-national extremists, secessionists & cross-border raiders would get diminished, which would make it easier for our forces to eliminate their with lesser collateral losses. Remnants of fraternal sentiments for their brethren across the border would melt away in no time if this could achieved.

The improving security situation would in turn lead to more investments, more growth & more opportunities for their youth which means ever-increasing masses of Kashmiris doing something good with their lives instead of sulking & wailing which is of little consequence. Net result: Kashmir's defacto integration into Indian Union without moving the pen.

Once the positive sentiment is strong enough: lets sideline, expose, corner, isolate & pummel down the anti-nationals who exploit Kashmiri youth to further their selfish agenda & to ensure their families' political survival + continued relevance. When all seems hunky-dory, go amend the constitution without much fanfare.

Liberals & human-rights whose shop runs on Kashmiri wares would be aghast & cry murder...but who cares. Let them do their dharnas. Our colonial dinosaur i.e. Police would beat the heck out of these wretched filth with their canes, lathis & water-cannons. Once beaten back & blue, the shops would be shut & everyone would be happy in their personal materialistic heavens.

If a person is guilty, he is guilty and should face the whole brunt of the law. And that is no sacrifice, instead is rule of the law.

AFSPA in no way inhibits prosecuting the guilty. It only ensure that before the civil law takes its course, the Union Govt gives the sanction to prosecute. This is only to ensure that local sentiments do not rule over the actuality of the case.

With the advent of the concept of 'human rights' and bleeding hearts taking over the mindset and making it a fashion statement, it is kosher to heap the blame on the security forces and the police.

It must be realised that to ensure that there is peace and tranquillity, that in the first place has been disturbed by the tricks that politicians play to ignite the local mindset, is what is the cause of all the 'problems'.

There is a trust deficit between the SF and the politicians since they are on a divergent path. One is to ensure law and order and the other to pander to the local sentiments so that their votes are safe as the gold in Fort Knox.

How did the Kashmir issue start? Politics.

How did it become a nasty issue? Politics.

And yet the Politics (i.e politicians) wants a safe Kashmir, beyond the grip or the terrorists and the Hurriyat supporters, who encourage the terrorist to come and provide safe haven and cover.? Oxymoron.

In between, the SF is sandwiched!

Deliver or get sacked!

Terrorists wear no uniform, and have no distinguishing features that separates them from the locals.

Therefore, action by the SF is on the intelligence made available.

And they have to act immediately before the terrorists change base and vanish.

In such a trip wire activation, there is many a slip between cup and lip.

But the main issue is, are the actions done because of being psychopaths or error of the intelligence given?

Further, it is the SOP that one can fire only when fired upon.

Therefore, it would be most surprising if the SF goes to kill without reason and without being first fired upon!

If a person is guilty, he is guilty and should face the whole brunt of the law. And that is no sacrifice, instead is rule of the law.

AFSPA in no way inhibits prosecuting the guilty. It only ensure that before the civil law takes its course, the Union Govt gives the sanction to prosecute. This is only to ensure that local sentiments do not rule over the actuality of the case.

With the advent of the concept of 'human rights' and bleeding hearts taking over the mindset and making it a fashion statement, it is kosher to heap the blame on the security forces and the police.

It must be realised that to ensure that there is peace and tranquillity, that in the first place has been disturbed by the tricks that politicians play to ignite the local mindset, is what is the cause of all the 'problems'.

There is a trust deficit between the SF and the politicians since they are on a divergent path. One is to ensure law and order and the other to pander to the local sentiments so that their votes are safe as the gold in Fort Knox.

How did the Kashmir issue start? Politics.

How did it become a nasty issue? Politics.

And yet the Politics (i.e politicians) wants a safe Kashmir, beyond the grip or the terrorists and the Hurriyat supporters, who encourage the terrorist to come and provide safe haven and cover.? Oxymoron.

In between, the SF is sandwiched!

Deliver or get sacked!

Terrorists wear no uniform, and have no distinguishing features that separates them from the locals.

Therefore, action by the SF is on the intelligence made available.

And they have to act immediately before the terrorists change base and vanish.

In such a trip wire activation, there is many a slip between cup and lip.

But the main issue is, are the actions done because of being psychopaths or error of the intelligence given?

Further, it is the SOP that one can fire only when fired upon.

Therefore, it would be most surprising if the SF goes to kill without reason and without being first fired upon!

Click to expand...

Why not let the civilian courts hear cases like this ? That way it will be more fair..

In August 1993 a bus load of family members of Officers / Jawans ( they were on a two month sabbatical to meet their men folk stationed at BB Cantt in Srinagar) while crossing Qazigund was attacked by militants. Though it was part of a military convoy, but while crossing a crowded market place two grenades were lobbed one landed inside the bus and there was mayhem. Three children and Four ladies died in the attack and eight others injured.

The militants were engaging combatants ?

It is incidents like these which send the temperatures of professional soldiers soaring.

Nobody ( civilian / media) raised this issue, we barred our buses with wire meshes & carried on with business as usual.

In a militancy of this magnitude collateral damage is sad, but part of the game.

Fake encounters are imaginative responses of the arm chair critic who can never fathom what operations through the night in temperatures between -5 to -10 degree mean.